DR IP WING KIN v. THE MEDICAL COUNCIL OF HONG KONG

CACV 627/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 627 OF 2001

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL OF HONG KONG

MADE ON 14TH MARCH 2001 AND DATED 15TH MARCH 2001)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from the order of the Medical Council of Hong Kong dated 15 March 2001 whereby the Council expressed itself as satisfied that the appellant, Dr Ip Wing Kin, had been guilty of misconduct in a professional respect and ordered that he should be reprimanded. It was further ordered that the decision should be published in the Gazette. The basis of the finding of professional misconduct was that the appellant had disregarded his professional responsibility to treat or care for his patient, Madam So, or otherwise neglected his professional duties in that on 21 June 1999 he claimed that "Madam So had contracted extensive genital warts when in fact she had not".

2. The appeal focused on two points. In the first place, it was said that the finding that Madam So did not have extensive genital warts was wrong in law, specifically because there was insufficient evidence for the Council to conclude that Madam So did not have genital warts. In the second place, it was said that even if Madam So had not had extensive genital warts, the appellant's advice to her was an error on his part and, even if he had been careless or negligent, that did not amount to misconduct in a professional respect.

3. It should be said at the outset that although the penalty of a reprimand was clearly a lenient penalty in the range of penalties which could be imposed, the seriousness of that penalty cannot be doubted. The appellant is a specialist dermatologist who has reached the senior ranks of his profession. A reprimand can be a matter of lasting effect, going beyond mere embarrassment.

Background

4. On 21 June 1999, Madam So consulted the appellant at her husband's request. Her husband had apparently contracted genital warts and he was concerned that he may have passed them on to his wife. He therefore had urged Madam So to consult the appellant.

5. Madam So's evidence was that when she consulted the appellant he first retrieved his records relating to her husband. He then explained what genital warts, referred to as "cauliflower", look like and then examined her. Her evidence was and then:

"Well, I opened wide my legs and he told me that I had very serious cauliflower. It was all on my labia. I was very confused at that time. He said that the cauliflower was all over my labia and he told me that I had [to] attend cryosurgery at least ten times he said in addition to injection, and he also told me that when a developing agent is put on my labia the cauliflower can be shown very obviously but since it was so serious that was not necessary. And then he opened my private parts and told me that the condition was very serious, the cauliflower were all over my labia, and he asked me to receive cryosurgery immediately. And he also asked me to feel my labia with my finger to see if there was a granulation and I felt a granulation, I felt it. I answered that I felt it and so he said that it was very serious, cryosurgery had to be performed immediately."

6. Madam So also said that the doctor's description of her condition was confirmed by the nurse who was present. However, she was not satisfied and consulted two other doctors on the same day. The first was another dermatologist, Dr Ip Pang Kui, who had consultation rooms in the same building as the appellant. The other doctor consulted was a gynaecologist, Dr Fung Sau Ying. These latter two doctors both examined Madam So. They were informed of Madam So's concern as to the possibility that she had genital warts and, indeed, Dr Fung was told of the previous consultation with the appellant. Both doctors could find no trace of genital warts; they gave evidence as to that before the Medical Council.

7. The first issue that the Council had to resolve was as to what Madam So had been told by the appellant when she consulted him. The appellant's evidence was that he might have told the appellant that her condition was "compatible with genital warts, or likely to be genital warts." He said that he had proposed to do an acetic acid test as a confirmatory test. He denied that he had told Madam So to have immediate cryosurgery and said that that was one of the options and that he had definitely not told her that she needed ten treatments. The Council's finding was clear that Madam So was a credible and consistent witness.

The issues on the appeal

8. Mr Macrae SC, on behalf of the appellant, did not seek to disturb the finding as to Madam So's credibility. It is the second part of the Council's findings that is challenged, namely that "extensive genital warts as claimed by the defendant would not have been missed by both witnesses, Dr Ip Pang Kui and Dr Fung Sau Ying, who had examined Madam So on the same day."

9. This second aspect of the findings is again a question of fact which the Medical Council, with seven doctors, was in a very advantageous position to assess. Mr Macrae very properly pointed out to this court that it could be said that three of the doctors who formed part of the Council, as well as of course the lay member, professed themselves not to be highly proficient in dermatology. Nevertheless, the question may be simply stated that, on the basis that Madam So's condition was as she described it in her evidence quoted above, could the other two doctors have missed it?

10. In this respect the Council had the assistance of the evidence of Dr Leung Sze Ka who was clear that if Madam So had extensive genital warts and her condition was serious any competent clinician would have been able to confirm it on an examination. When he gave oral evidence he was asked whether if a patient had genital warts which would require ten sessions of cryosurgery it would be missed by a specialist in dermatology; he said it would not. He also said that that condition would not be missed by a gynaecologist. He went on to say that a general practitioner or a clinician would also be able to see that something was wrong. Both Dr Ip Pang Kui and Dr Fung Sau Ying were cross-examined and gave consistent evidence that they did not find genital warts.

11. In my view, in those circumstances, there was clearly evidence upon which the Medical Council could come to the conclusion that Madam So was not suffering from a medical condition of the nature of which she had been told. It can be observed that the Medical Council had the advantage, which this court of course does not, of general medical knowledge and experience which would help them assess the evidence relating to diagnosis.

Misconduct in a professional respect

12. The second ground of appeal was that even if the appellant had given the advice, in terms quoted above, in circumstances where Madam So had no genital warts, that constituted "misconduct in any professional respect" as referred to in section 21(1)(b) of the Medical Registration Ordinance, Cap. 161. In this regard, our attention has been drawn to authorities both from the United Kingdom and Australia. No doubt the legislation in those parts has a similar genesis to the Hong Kong legislation but wording has varied over the years and in different places. Our attention was drawn, for example, to a statement of Lord Cooke of Thorndon in giving the opinion of the Privy Council in Preiss v General Dental Council [2001] 1 WLR 1926 where at paragraph 28 he said:

"It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence."

Similar sentiments were expressed by Kirby P, as he then was, in Pillai v Messiter (No. 2) [(1989) 16 NSWLR] 197 see for example page 201. That was in relation to wording of legislation which was close to the wording of the Hong Kong legislation. Whilst considering misconduct he said at page 201D "... indifference to basic rules and inattention to rudimentary obligations of professional practice would not provide a safe haven for a professional person charged with misconduct."

13. In Hong Kong the appropriate interpretation of section 21(1)(b) has been expressed consistently in a number of decisions. The judgments recognise the inappropriateness of incorporating such concepts of moral delinquency and opprobrium, into a determination of whether there has been misconduct. Starting first of all with the decision in Koo Kwok Ho v Medical Council of Hong Kong (Civ App 23/1988, unreported) Cons VP referred to Lord Mackay's analysis of the principles in giving the advice of the Privy Council in Doughty v General Dental Council [1987] 3 WLR 769 that the question was whether the practitioner had fallen short, by omission or commission, of the standards of conduct expected amongst the practitioners. At paragraph 21 of her judgment in the case of To Chun Fung Albert v Medical Council of Hong Kong [2002] 1 HKC 571 Le Pichon JA said:

"In my judgement, the correct test for 'misconduct in a professional respect' is that laid out in Koo's case. There is misconduct within s 21(1)(b) if it can be established that there has been a 'falling short of standards'. As Cons VP observed, '[t]he best judges of that are the doctors themselves' since 'what was expected of a doctor in the given circumstances was something which the doctors of the Council would know from their own professional experience.' There is no room for the application of the litmus test with its overtones of moral stigma or turpitude."

14. In my view, looking at the facts of this case, there are no grounds for disturbing the Medical Council's finding of misconduct in a professional respect. Once the Medical Council had accepted Madam So's evidence and had found that she did not have genital warts, it was entirely justified in the circumstances of this case in coming to the conclusion that there had been a falling short of standards which would be expected amongst doctors. The Medical Council was clearly justified in taking a serious view of the matter. My conclusion in this respect is not altered by the fact that it is difficult to discern from the transcript quite what submissions the Legal Officer was making on this aspect. It may well be that there are typographical errors or other reasons which would render the transcript unclear whilst the submissions may themselves not have suffered from that defect.

15. In my view this appeal must be dismissed, with an order nisi of costs in favour of the respondent.

Hon Le Pichon JA:

16. I agree.

Hon Burrell J:

17. I agree.