Do we need more Council Members?

 

By the time you read this Editorial, you should have received a notice for Extraordinary General Meeting (EGM) of the HKMA.  I am not going to copy and paste the notice here.  Basically, the EGM is supposed to pass a resolution of increasing the number of Council Members of the HKMA Council by 3.  That would increase the total number of Council Members from 18 to 21.  Together with the President, the 2 Vice-presidents, the Hon. Treasurer, the Hon. Secretary, the Immediate Past President and the invited Legco Member, the total number of members in the Council will become 28.  The 3 new Council Members will be added altogether this year via election, though their terms will be for three years, two years and one year respectively according to the votes they get.  That means we have to elect 9 Council Members this year.  Accordingly, the quorum of Council Meetings will be increased from 6 to 8 members.

From past records, the HKMA seldom, or if it did happen before, had problem with passing resolutions in General Meetings.  The obvious reason is that our members are satisfied with the Council and the running of the Association.  Therefore they do not bother to turn up and raise questions for the Office Bearers.  This has usually been the case in Annual General Meetings (AGMs).  For this issue of increasing the number of Council Members, it was not raised in the AGM last year, and it is not going to wait for the coming AGM in July this year.  An EGM has been considered necessary.  For this EGM, it falls on a busy Monday night, lodged between a Sunday and a Public Holiday.  Therefore the only problem foreseen is not on challenges and questions, but on meeting the quorum of 15 members.  Luckily, this EGM also falls nicely on a Council Meeting; therefore the quorum should not be a problem.

The reason given for increasing the number of Council Members by 3 is: “The number of members of the HKMA has increased for more than one-third from around 7300 in 2007 to more than 9900 in 2014.  There is an increased number of activities in the Association so much so that it will be more beneficial to the Association to increase the number of Council Members.”  The reason is pretty obvious, though it is up to members’ own imagination on how many activities are increased, how they are related to the present number of Council members and to the increased number of Council Members, and how it is going to benefit the Association.

I remember reading a business novel which is said to illustrate state-of-the-art economic theories.  It was written by Eliyahu M. Goldratt and Jeff Cox and published in 2004.  The name of the book is: The Goal: A Process of Ongoing Improvement.  The story is about how a factory manager achieves his goal of improving output of his plants through the help of piecemeal advices from a college professor who skillfully puts interesting economic theories into actual practice.  Here, the goal of Council is to better handle the increased activities of the Association.  The means chosen is by increasing 3 Council Members.  The logical question to ask is: Can the means lead to achievement of the goal?  We also need to consider whether there would be any unwanted effects.  Are we talking about manpower alone, or about efficiency?  There is a very basic economics theory called the Law of Diminishing Returns.  It states that in all productive processes, adding more of one factor of production, while holding all others constant, will at some point yield lower per-unit returns, or even negative returns.  Do not forget that an important, if not the more important, role of the Council is decision making in policies.  A council tends to become dysfunction when it grows in size.  For a particular matter which is not overtly complicated or important, if each of the 28 members gives his view for 5 minutes, the discussion will end up for more than 2 hours. 

It is efficiency that matters.  I came across another interesting economics principle on efficiency in my study days.  It is called Pareto Principle.  It states that for many events, roughly 80% of the effects come from 20% of the causes.  It is an observation proved by complicated mathematical calculations.  The reasons behind such natural order are again complicated and multi-factorial.  Put it simple, you can say that 80% of your clinic income comes from 20% of your load of patients.  Or, 80% of the complaints you receive come from another 20% of your patients.  The Italian economist Pareto developed his principle in the 1900s by observing that 20% of the pea pods in his garden contained 80% of the peas.  We can safely expect that 80% of the activities of the HKMA will still be handled by 20% of the Council Members no matter the total number is 25 or 28.  Thus, adding 3 more members without looking into other aspects of how these activities are handled (or, more fundamentally, whether such activities are needed) might not benefit the Association too much.

(Source: HKMA News April 2014)

From the Editor

(Source: HKMA News March 2014)

Permanence of Objects and Impermanence

 

During Chinese New Year holidays, I stayed in Hong Kong and did not have any special arrangement.  I tried to finish the few books that I began but failed to finish last year.  It turned out that I did not show much improvement in the New Year.  It took much endurance to finish a boring book, especially the one that you were not interested in finding out what the story was going to happen.  My mind drifted, from what had happened in the past year to what is going to happen in the coming year.  That was too wide a scope even for mind-drifting.  So I tried to narrow the scope to a month’s time.  That was: what to write for the Editorial of the News in February.  Even that was not easy.  It did not mean that nothing worth to be discussed.  On the contrary, there were too many happenings from the Council of HKMA, to the Medical Council, to the medical profession, and, to Hong Kong.  However, most of them were depressing and might not be a good topic to start a new year.  It is time to talk about weather.

The beauty of Chinese New Year is that you would see relatives whom you might seldom see otherwise.  I played with two 7-month-old babies during the holidays.  In return to my lai-see, they gave me their intestinal viruses.  I got gastro-intestinal upset for two days, though I still managed to attend barbecue gathering and hot-pot dinner.  Well, this part is irrelevant.

One of the small tricks I liked to show the non-medical relatives was the demonstration of sense of object permanence.  Babies like to grasp objects, swing them, and then hit against the table, and then against their heads.  Common objects include ceramic spoons, mobile phones, and every valuable and fragile thing they can get hold of.  My way to confiscate the object so as to protect the baby was to cover his eyes with my one hand, and then quickly seized it from him.  Paediatrics teachings from the old days told me that at the age before 8 months, most babies did not have the idea of permanence of objects.  That meant when the object disappeared from his visual field, it was gone, and was never there.  There was no cause-and-effect relationship for the past, the present and the future of an object.  After some time, when the circuit in the brain developed, and from learning through daily experience, the baby grasped the “reality” that objects would remain there for a considerable period of time.  This is called permanence of objects.

Another regular function of my Chinese New Year holidays is to visit Po Lam Monastery in Lantau Island with my classmates from Buddhist Studies.  This year, after I played my usual trick of object permanence with the two babies, I went to Po Lam the following day.  While having vegetarian lunch, I recalled the teaching of the Buddha.  The 3 marks of existence are: suffering, non-self, and impermanence.  Not only that all conditioned things are impermanent, their mere existence are doubted and negated.  It is through the delusion of the existence of a “self” that we grasp on all these in-fact-impermanent things.  As an unavoidable consequence, we would suffer loss, because things will perish, including ourselves.  Thus, we suffer.  The Buddha has claimed that his teaching covers only sufferings and the cessation of sufferings.  He has come to the real understanding of existence and he points out the way to the cessation of the inevitable sufferings.  However, it is not easy to achieve.  It might take the whole life time to practice diligently, or some might rarely get sudden enlightenment on the special teaching by a Zen master.   

But wait, how about the 7-month-old babies?  At that point of time, they know the presence of an object.  However, they do not have the sense that the object is permanent, at least for the period of time concerned.  It is only through observation day in and day out that they get the impression of persistence and permanence.  Of course this sense is essential for our daily living.  Otherwise, we cannot even identify our parents and look after our own belongings.  Separation anxiety in fact might be one kind of pathological conditions where the sense of permanence fails to develop and to mature.

The above was the irony that I came to after the holidays.  Life is like this.  We learn, we gather, we collect, and we treasure many things and phenomena so as to adapt ourselves to living.  We treat these as “realities”.  However, these might be the source of suffering especially when we face losses.  Even with the right view and practice, it is difficult to remove the hard-learnt and deep-seated experiences.

(Source: HKMA News February 2014)

Credibility

I came across a judgment handed down from the Court of Appeal on December 16, 2013.  It was heard on November 19, 2013 on appeal by two appellant doctors from the order of the Medical Council of Hong Kong made on November 21, 2011.  The Medical Council lost this appeal and had to pay the costs of the appellants.

It is no big news that the Medical Council lost an appeal.  In an adversarial system of litigation, either the appellant or the respondent will be ruled in favor of.  Doctors found guilty of professional misconduct tend to appeal.  This is especially the case when the sentence involves removal of the name of the guilty doctor from the General Register.  The reason is that when there is an appeal in progress, the removal will not take effect.  Such arrangement is considered to be fair to the doctor found guilty as the waiting time for an appeal to conclude usually takes years.  As in the aforementioned case, it took two years.  If the doctors had been removed immediately after the Medical Council inquiry, the majority of them would probably have spent their sentences before the appeals were heard.  They would be punished even if they succeed in the appeal, which means they are actually not guilty.  This to-be-fair practice is not limited to the Court of Appeal.  Therefore it is not uncommon to find doctors lodging appeal to the Court of Final Appeal after they lose in the Court of Appeal.  It would then take three to five years for a removal sentence to materialize.  Well, I am not going to discuss or comment on this practice, as this is part of the game of litigation.

Among these so-commonly-happen appeals, the Medical Council seldom loses.  If you are to bet on it, don’t put your money on the appellant doctors.  The reason is given in each and every judgment in a copy-and-paste manner.  In the aforementioned judgment, it was said that “this Court would be very slow to interfere with findings of fact and credibility by an experienced body such as the Council.”  “…. This Court is at the double disadvantage of not having heard the witness but of also being ill-equipped to gainsay a determination by the Council as to what are or are not acceptable standards amongst medical practitioners.”  Thus, when there is a case in which the Court of Appeal rules in favor of the appellant doctors, it appears more interesting and invites more thorough reading of the judgment.

I am going into details of the case.  If readers are interested, you can go to the following link: http://www.hklii.hk/eng/hk/cases/hkca/2013/637.html.  I just want to highlight some of my observations and gut feelings as a family doctor who knows a little bit about evidence law and medical law.  The Court of Appeal had rightly and concisely summarized the allegation into one sentence: “the failure of the appellants to care for their patient post-operatively by not referring him to an oncologist when they knew the tumour had not been successfully and completely excised: and instead, leading the patient and his family to believe that it had been.”  And the issue of the case was conveniently described by one word: “credibility”.

Reduced to the simplest, the complainants alleged that the defendant doctors omitted to do something, or did something in a negligent manner.  The defendant doctors denied such allegations, and told another story.  It was the evidence of the complainants against that of the defendants.  Apparently, the inquiry panel whole-heartedly preferred that of the complainants.  The inquiry panel found the complainants “honest and reliable witnesses”.  On the other hand, the inquiry panel showed strong feelings against the defendants, particularly the family doctor.  The Court of Appeal shared my observations.  The judges described the inquiry panel as “adopting some very strong language in its assessment of the conduct and evidence of the two appellants”.  They then gave nine excerpts from the findings of the inquiry panel “to give a flavor of that assessment”.  They described such criticisms as “damning” and supplied emphasis on the excerpts as follows: “dishonest and unreliable”; “he tried to cover up”; “both lied to the patient and the daughters”; “deliberately misled the patient and the daughters”; “hiding the facts”; “deliberately designed to dissuade the patient and the daughters from pursuing post surgical treatments which would expose his lie”; “was the mastermind of the whole arrangement”; “pursued his self-interest to cover up his lie”; “dishonest motive to hide the fact”.  The judges went on and summarize that: “The Council effectively found, and said so in emphatic terms, that D1 had for personal gain masterminded a plan to induce the patient and his family to have the operation done privately rather than in a public hospital, conspired with D2 to conceal from the patient and his family that removal of the tumour had not been successfully achieved, and then pursued a deliberate course of conduct designed to dissuade the patient and his family from having any treatment which might expose their lie; thereby clearly putting the patient’s life in grave danger.”

However, for the fact of the case and the ground of appeal, it was not just the evidence given by the complainants against that given by the defendant doctors.  There were certain written documents that the inquiry panel “overlooked and/or failed to deal with which not only undermined the evidence of the complainants but confirmed the evidence of the appellants”.  Moreover, it was common sense that the doctors would not on one hand tried to lie and hide the facts, while on the other hand gave the true pathological report to the patient and advised him having an oncology appointment in Queen Elizabeth Hospital.

Misconduct in a professional respect is a serious verdict for a doctor.  Risking patient’s life for financial interest amounts nearly to a criminal charge.  A very high standard of proof is called for.  If it is not “proved beyond reasonable doubts”, it should be “highly probable than not”.  The judges had commented fair and square: “If the Council took such a serious view of the appellants’ conduct and adopted such a disparaging view of their evidence, then it was particularly important that it should deal with that body of evidence which tended to confirm their credibility and strengthen the improbability of them having done what was alleged.”   

 

(Source: HKMA News January 2014)

December 2013

 

I have a costly cheap watch.  Don’t think that I am contradicting myself.  I divide watches into cheap and costly ones.  Mine belongs to the cheap category.  However, within the cheap category, it is a relatively costly one.  (Well, in the costly category, some do look cheap.)  Because it is a costly cheap watch, it is naturally a mechanical watch.  Cheap cheap watches are usually electronic.  Apart from requiring change of batteries once in a blue moon, electronic watches are quite accurate.  They do not need winding or constant wearing to keep them working.  For mechanical watches, cheap and costly alike, they need to transform movements into stored energy to keep them functioning.  Thus, if you have more than one watch, unless you put all your watches in a fancy winding machine, you need to adjust the time of your watch every occasion you switch to a not-so-often-worn one.  For convenient sake, and for another obvious reason, I only wear one watch.  Although it self-winds and works continuously, I still need to adjust it every week.  This is because it gains just less than a minute a day, and I can only tolerate inaccuracy up to 5 minutes.  Since it is in the cheap watch category, I guess it would not be too helpful to have it repaired or tuned.

Day in, day out, I begin to get lost.  It seems that I have to adjust the watch too frequently.  Another observation comes from my writing for a small column in a newspaper 4 days a week.  I submit 4 articles altogether every Thursday.  How come I have a feeling that I am writing them non-stop?  For clinical work, in the e-Health system, all of a sudden I find the item for Elderly Vaccination Subsidy Scheme again.  Doesn’t the Scheme only begin every November?  Then I notice an alert telling me that I have not changed my log-in password of the Scheme for 654 days.  That is nearly 2 years!  When I fill in the details of a patient, I realize that the pretty lady whom I saw when my clinic started is now eligible for the subsidy.

Is time moving faster?  Well, it is possible.  Time is not something absolute, and some even doubt its existence.  Einstein, the father of relativity, once said that the bad speaker in a lecture he attended had given eternity a new definition.  When I try to retrieve the quote, I realize that I read the book Einstein when Steve Jobs died.  And that was October 2011, more than 2 years ago.   

Then I realize that it is early December 2013.  It is time to write an Editorial for the News.  Why not write a review on the happenings in 2013?  I did that before.  But that were in 2008, 2009 and 2010.  When I try to recall what were the big pieces of news in 2013, I get totally confused.  SARS was 10 years ago in 2003.  H1N1 and hotel quarantine was in 2009.  This year was my turn to re-elect for Council Member of the HKMA.  I was ipso facto re-elected.  When I collected the souvenir for my service from 2010 to 2013 in the AGM, I remembered that I had fractured my left elbow when I was presented a similar souvenir at an earlier time.  And that was 6 years ago!  Has anyone muddled with the time machine and stolen from us, or at least from me?  Then I recall the fact that despite so many events in between, we are still in the second year of our Chief Executive’s term of service.  Our time has not been stolen.  It is only relativity in play.  The followings are my picks for 2013 after confirming that they really happened in this year.

The Nobel Prize and alike

• They are listed in case people think that doctors should know about them.  The Nobel Prize in Physiology or Medicine 2013 was jointly awarded to James E. Rothman, Randy W. Schekman and Thomas C. Südhof for “their discoveries of machinery regulating vesicle traffic, a major transport system in our cells.”
• The Shaw Prize in Life Science and Medicine was jointly awarded to Jeffrey C. Hall, Michael Rosbash and Michael W. Young for “their discoveries of molecular mechanisms underlying circadian rhythms.”
• The Ig Nobel Prize (which is an American parody of the Nobel Prizes) in Medicine was awarded to "Auditory stimulation of opera music induced prolongation of murine cardiac allograft survival and maintained generation of regulatory CD4+CD25+ cells" by Masateru Uchiyama, Xiangyuan Jin, Qi Zhang, Toshihito Hirai, Atsushi Amano, Hisashi Bashuda and Masanori Niimi.  The scientists assessed the effect of listening to opera, on heart transplant mice. 

The infections

• On December 2, the CHP confirmed the first case of H7N9 bird flu in Hong Kong.  17 close contacts of the patient have been quarantined and prescribed with Tamiflu prophylaxis, and over 200 other contacts of the patient had been placed under observation.  On December 6, another case was confirmed.
• Two children died of Streptococcus pneumonia serotype 3 infection within two weeks in November.  Parents became panic when there was an opinion that children who had received the older generation vaccines PCV-7 and PCV-10 would be more susceptible to infection from serotype 3.  After a bit of confusing opinions, the CHP decided to subsidize children under 6 who had not received any PCV-13 to have a booster via the Childhood Vaccination Subsidy Scheme.
• In May, the novel coronavirus (nCoV) was named the Middle East respiratory syndrome coronavirus (MERS-CoV) by the Coronavirus Study Group of the International Committee on Taxonomy of Viruses.  MERS-CoV confirmed cases continued to be reported from different countries in Middle East, Europe and North Africa throughout the year.

The Hospital Authority

• In December, Prof. John LEONG Chi-yan succeeded Mr. Anthony WU Ting-yuk to be the Chairman of Hospital Authority.
• On August 21, the Government announced the setting up of a Steering Committee to carry out an overall review of the Hospital Authority.  There was no representative from the HKMA.

The Universities

• Professor Francis CHAN Ka-leung became the Dean of the Faculty of Medicine at the Chinese University of Hong Kong in January. 
• Professor Gabriel Matthew LEUNG became the Dean of the Li Ka Shing Faculty of Medicine at The University of Hong Kong in August.
• Prof. YU Cheuk-man, Head of Cardiology of the Faculty of Medicine of the Chinese University of Hong Kong, was suspended from performing vascular interventional procedures after there were internal complaints on his performance.  He disputed and investigations are still in progress.

The human rights

• In April, Dr. York CHOW Yat-ngok, former Secretary for Food and Health, became the new chairperson of the Equal Opportunities Commission.  He hoped to make progress on legislation outlawing discrimination on the grounds of sexual orientation, and to protect same sex marriage as it was “a matter of human right”.   
• In September 25, the Action Committee Against Narcotics (ACAN) issued a consultation paper on the RESCUE Drug Testing Scheme.  This was a compulsory drug testing scheme infringing on basic human rights.  In November, the HKMA held a press conference to state our firm stance against this scheme.  It was described as 「藥石亂投」.  The Apple Daily elected this scheme as one of the big 10 news concerning human rights in Hong Kong in the year 2013. 

(Source: HKMA News December 2013)

Akusala?

 

In an environment of collective karma, where a deer is called a horse, and where the pots call the kettles black, I often think of Buddhist teachings.  In Early Buddhism it is much stressed that life is suffering, and there is a way to the cessation of suffering.  The Buddha points out the way.  He calls it the Noble Eightfold Path.  People need to know it, to practice it and to achieve it.  The Noble Eightfold Path is: right view, right intention, right speech, right action, right livelihood, right effort, right mindfulness and right concentration.  But what is right and what is wrong?  Since Buddhism is not governmental decision on free-to-air television permits, there is no need to hide behind the Executive Council’s confidentiality rule and to shy from explaining.  There are discourses discussing and explaining morality.  Pairs of terms are commonly used to describe praiseworthy and apprehensible actions and states of mind.  Kusala and akusala are one of such pairs.

Kusala is a Pali term to describe things in a good sense, while akusala is the opposite term to describe something bad or even evil.  In the Sammaditthi Sutta (the Discourse on Right View), examples for akusala actions include killing living beings, taking what is not given, misconduct in sensual pleasures, false speech and ill-will.  Kusala actions are expressed as the abstention from akusala actions.  The Discourse also identifies the roots for akusala actions.  They are refereed to as akusala states of mind, which include: greed, hatred and delusion.  In the reverse, non-greed, non-hatred and non-delusion are described as kusala.

Kusala is translated in different terms.  The most commonly used are wholesome and skillful.  This is because like translation of other languages, a term usually carries several meanings especially when used in different contexts.  I tend to understand kusala as wholesome when referring to the mind, and as skillful when referring to an action.  Of course doing so might deviate form the original teaching a bit.  But many a time, how something is done is as important as, if not more important than, whether the action is wholesome from an absolute objective point of view.  Moreover, as early as in 1766, Adam Smith had postulated in his classic work The Worth of Nations that an individual’s for-his-own-interest action might bear no relation to the end result to the society: “… he intends only his own gain, and he is in this, as in many other eases, led by an invisible hand to promote an end which was no part of his intention.  Nor is it always the worse for the society that it was no part of it.  By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it.  I have never known much good done by those who affected to trade for the public good.”  It was his dictum that: “It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest.  We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.”

Judging an individual’s state of mind is not easy.  How about an organization?  It is even more difficult to assess the state of mind of the government, if such thing does exist.  Seemingly Hong Kong is now having a very strong government in the eyes of Adam Smith, as many officials are taking care of their own interests rather than doing good to the society.  Apparently, and sadly, the “invisible hand theory” seems not applicable to a government.

However, whether the actions of a government are skillful or not are not that difficult to judge.  In the recent incident of issuing free-to-air television permits, akusala or unskillful is the verdict.  I am not as naïve as to believe that all governmental decisions are fair and transparent.  It is for the officials to act in a skillful manner so as to allow implementation of decisions.  It is not up to me as a knowing-nothing-citizen to comment on strategies and planning.  But I always fantasize the advisors and spin-doctors in TV series like The House of Cards, The West Wings, or even The Good Wife.  What strikes me is that this television permit issue is but one of a series of akusala acts.  Discontent seems to be stirred up from all walks of life: the right of abode in Hong Kong, maternity beds, milk powder, kindergarten admission, moral and national education in high schools, illegal structures, housing, and even the use of language, and even cemetery niches. 

Interestingly, if we take another point of view, it would be near mission-impossible to mobilize so many Hong Kong people to voice out their concerns.  Hong Kong citizens have been well known for their political indifference, short attention span and indulgence in self-interest.  So, do all these arise from an akusala intention with kusala acts?  Or from an akusala intention with akusala acts?  Or from a whatever mind with kusala acts?  Or from a whatever mind with akusala acts?

(Source: HKMA News November 2013)

No matter what the RESCUE Drug Testing Scheme is named, it is a proposal for compulsory drug testing. No matter how the compulsory drug testing scheme is presented, it is a breach to fundamental human rights.

The Action Committee Against Narcotics (ACAN) has recently issued a consultation paper on a scheme called RESCUE Drug Testing Scheme (RDT).  It is a proposal to change the present law, so as to empower the police and other law enforcement officers to require a person to undergo a drug test (mainly urine test) when there is so called “reasonable suspicion” that he has taken dangerous drugs.  This is not to clarify any ambiguity in the present law.  Instead, it involves a major change to it.  Currently, in the Dangerous Drugs Ordinance there is a specific section (section 54AA) that prohibits the test of urine from a suspected person except when the person appropriately consents to the test.  This urine-testing-matter is taken so seriously that there is another section (section 54AB) in the Ordinance detailing the use of information gathered from the urine test (done under consent of the person), and the use and disposal of the urine sample collected.

These sections are in place to protect basic human rights.  Article 6 of the European Convention on Human Rights is the provision to protect the right to a fair trial.  Article 6(2) states that: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”  The burden of proof rests totally on the prosecution to prove beyond reasonable doubt that the defendant is guilty.  The defendant needs to do nothing to prove his innocence.  Even in a charge of murder, the defendant can remain silent.  If the prosecution cannot prove his case, the defendant is innocent, as he always is.  To guard against torture and coercion, the English common law and the Fifth Amendment to the United States Constitution spell out the right against self-incrimination.  The prosecution is required to prove his case without the cooperation or provision of any evidence from the defendant.

It is against human rights to require a person to provide a urine sample for drug testing so as to prove that he is guilty or innocent.  It reverses the burden of proof from the prosecution to the defendant.  When the police makes a so-called “reasonable suspicion”, the person suspected cannot do nothing.  He is statutorily required to provide a urine sample to prove his innocence.  Refusal to do so is guilty per se.

However, there are existing provisions with reversed onus of proof.  Although Article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses.  To cut all legal jargons, such provisions need to be justified.  They are the exceptions.  It has to be proved that such provision is necessary, useful and proportionate to combat the threat faced by society.  Does the new proposal by ACAN meet these tests for justification?

Dangerous drugs abuse has been a long standing problem in Hong Kong.  There was a rise in the number of abusers especially young people abusing psychotropic substances in 2008.  Various measures were introduced to combat such rising trend.  The consultation document tells us that there is “remarkable improvement” in the drug situation.  Comparing 2012 and 2008, the total number of abusers has fallen 23%.  For abusers under 21 years old, the number has actually decreased by 54%.  Thus, there is no imminent need here.

Dangerous drugs are mentally and physically harmful to the abusers.  Abusers affect their family members and friends.  They are a burden to the society.  However, the question we need to consider is whether drug abuse stands out uniquely to other threats to the society to the extent that a provision infringing human rights has to be passed.  Compare to drug trafficking and drink driving, the harms of drug abuse mainly affect the abusers than the others.  The threat to society is minimal.  Compare to other addiction problems such as alcoholism and pathological gambling, drug abuse is not uniquely and excessively harmful.

Actually discussion should stop here as there is no imminent need to violate human rights.  For the sake of analysis, let us continue to look at the usefulness of compulsory drug testing.  Reading through the consultation paper, there is no mention of why and how compulsory drug testing is helpful in early identification of drug abusers.  There is no study or statistical evidence to support compulsory drug testing.  There is even no estimation of how effective compulsory drug testing will be.  With such reckless assumption, it is amazing to read in the consultation paper a fact that 80% of the drug abusers are “hidden” in the sense that they take drugs in their own homes or in friends’ homes.  Obviously these 80% of the abusers will not be silly enough to revert their hidden nature when there is compulsory drug testing.  It is also reasonable to predict that many of the remaining 20% will turn hidden.  So, will compulsory drug testing in public areas be useful?

To fulfill the requirement of “being proportionate”, the consultation paper proposes several measures to limit the power of law enforcement officers under the Scheme.  Among the measures, the most concern is on the trigger to the new power of forcing a citizen to prove himself innocent.  It is suggested that two conditions need to be satisfied: 1) there are substances suspected of being dangerous drugs present in the near vicinity of the person concerned; AND 2) the person’s physical state, behavior and/or belongings show that he may have just taken drugs.  The consultation document describes this trigger as “a high threshold” and even poses a question to ask whether people would agree to scarify catching some obvious cases for adopting such a high threshold.

This is the most wrongful description of the trigger threshold.  Consider that there is no imminent threat to society and the ineffectiveness of compulsory drug testing, this trigger is disproportionately low for an infringement on basic human rights.  Both limbs of the trigger test rest on subjective opinions from law enforcement officials.  The first requirement is only a suspicion on the finding of dangerous drugs.  Whether the substance turns out to be dangerous drug or not doesn’t matter.  For the second requirement, it is fictitious to believe that a police officer can distinguish drug abuse from other conditions such as alcohol consumption, side-effects of medications or mental illnesses.  Think about inside a crowded bar, the police can invoke the new power and force all the customers to the police station when one of the policemen has a pack of any powder in hand.

In conclusion, the RESCUE Drug Testing Scheme is a compulsory drug testing scheme that infringe basic human rights.  It seeks to revert the prohibition of testing of urine without consent as spelled out clearly in current law.  To create such a provision requires strict criteria for justification.  As a matter of fact, the proposal fails in all aspects.  There is no imminent threat to the society.  The test itself is not useful.  The new power suggested is disproportionate to the threat perceived. 

(Source: HKMA News October 2013)